On
September 18, 1998, someone murdered three people in
Mishawaka, Indiana: Beth Kubsch, Rick Milewski, and his son
Aaron Milewski. Beth's husband, Wayne Kubsch, was accused
and convicted of the triple murders and sentenced to death.
After direct appeals and postconviction proceedings in
Indiana's state courts, Kubsch turned to the federal
court for habeas corpus relief under 28 U.S.C. § 2254.
Although he raised a number of arguments in support of his
petition, by now they have been distilled into one
overarching question: did the state courts render a decision
contrary to, or unreasonably applying, the U.S. Supreme
Court's decision in Chambers v. Mississippi, 410
U.S. 284 (1973)?

The
stakes could not be higher: because the state courts found
Chambers inapplicable, the jury never heard evidence
that, if believed, would have shown that Kubsch could not
have committed the crimes. The district court and a panel of
this court concluded that the state court decisions passed
muster under the deferential standards imposed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See Kubsch v. Neal (Kubsch IV), 800 F.3d
783 (7th Cir. 2015). That opinion was vacated when the full
court decided to hear the case en banc. We now reverse and
remand for issuance of the writ.

I

A

We
begin by outlining what happened on the fateful day, relying
on the facts that were admitted at the second trial, as
recounted by the Indiana Supreme Court. See Kubsch v.
State (Kubsch II),866 N.E.2d 726 (Ind. 2007) (second
trial); see also Kubsch v. State (Kubsch I), 784
N.E.2d 905 (Ind. 2003) (first trial), and Kubsch v. State
(Kubsch III),934 N.E.2d 1138 (Ind. 2010)
(post-conviction). As this account shows, the state's
case was based entirely on circumstantial evidence; all agree
that there was no direct evidence of guilt.

Wayne
and Beth Kubsch were married in November 1997. It was a
second marriage for both: Beth had two sons, Aaron Milewski,
from her previous marriage to Rick Milewski, and Anthony
Earley; and Kubsch had a son, Jonathan, who lived in Michigan
with his mother, Tina Temple. Aaron lived with Rick in South
Bend, Indiana, while Anthony lived with Kubsch and Beth in
nearby Mishawaka. Kubsch owned the family home, as well as 11
rental properties in St. Joseph County. These properties were
encumbered by mortgages totaling approximately $456, 000 as
of mid-1998. Kubsch also had credit-card debt exceeding $16,
000. He tried paying that off by refinancing four of his
rental properties, but by August 1998 the credit-card debt
had reached $23, 000, and by September Kubsch was falling
behind in his mortgage and tax payments. Around that time, he
bought a life insurance policy on Beth, with himself as the
sole beneficiary; the policy was to pay $575, 000 on her
death.

On the
morning of September 18, 1998, Beth's birthday, both
Wayne and Beth Kubsch were up early. Testimony from
Beth's coworker Archie Fobear established that by 6:00
a.m. Beth had already left the home that she shared with
Kubsch on Prism Valley Drive in Mishawaka and was just
starting to work at United Musical Instruments in Elkhart,
Indiana, approximately 11 miles away. Cellular telephone
records indicated that Kubsch made a call at that time from
the sector just adjacent to the one covering the home. He was
driving to his place of employment at Skyline Corporation,
also in Elkhart; he punched in at 6:50 a.m. Cell records show
that Kubsch made a telephone call at 9:11 a.m. somewhere near
his workplace, and that he made another call at 10:45 a.m.
from Skyline's break room. The latter call was to the
home, presumably to Beth, who had finished her shift at 10:00
a.m., returned home, and paged him twice from home around
10:30 a.m. At 10:48 a.m., a five-minute call was placed from
the Kubsch home to the home of Rick Milewski. At that point
Beth left the house to run some errands. A security camera at
the Teacher's Credit Union shows Beth, along with her
dog, in her car at a drive-up window at 11:08 a.m. There is a
credit union receipt stamped 11:14 a.m. confirming a
completed transaction. A little while later, at 11:52 a.m.,
Beth was with credit counselor Edith Pipke at the Consumer
Credit Counseling Agency in South Bend. No evidence admitted
at the second trial indicated where she was after she left
the credit union and before she arrived for her appointment.

In the
meantime, Kubsch drove back to the Prism Valley Drive house
after punching out from his job at 11:13 a.m. Erin Honold, a
neighbor, saw him and his car in the driveway between 11:30
a.m. and noon, around the time when Beth was speaking with
the credit counselor. Telephone records from the house
indicate that a call was made at 11:37 a.m. to American
General Finance; Kevin Putz, an employee of that company,
testified that he spoke to Kubsch that morning. Before
leaving the house, Kubsch admitted at the second trial, he
had smoked part of a marijuana joint before returning to
work. Between 12:09 and 12:11 p.m., Kubsch made three more
calls using his cellphone, one to the house (implying that he
was no longer there) and two to Rick Milewski. He apparently
interrupted Rick while Rick was speaking with his brother
Dave about an upcoming hunting trip. Dave testified that Rick
said that Kubsch was calling to discuss moving a refrigerator
at the Prism Valley Drive house.

Beth
paged Kubsch again at 12:16 p.m.; cell records indicate that
at 12:18 p.m., he called the house for 31 seconds from the
vicinity of Osceola, a town between Mishawaka and Elkhart.
Kubsch returned to Skyline and finished smoking his joint; he
did not punch back in. He made two phone calls from the break
room, one at 12:40 p.m. and the other at 1:17 p.m. Between
those calls, Rick called Beth at 12:46 p.m. Kubsch punched
out of work again, this time for the day, at 1:53 p.m. A
minute later, he called the house from Elkhart and was on the
line for 46 seconds. The next call from Kubsch's cell
phone came at 2:51 p.m.; it was from a sector near the house.
Kubsch testified that he was at the house between 2:30 and
2:45 p.m., but that no one else was there. The state's
theory was that this was approximately when he committed the
murders-between his 1:53 and 2:51 p.m. phone calls.

Witnesses
testified that Aaron was waiting outside Lincoln Elementary
School in South Bend and that Rick picked him up there
between 2:20 and 2:35 p.m. (The school is now called Lincoln
Primary Center, a member of the South Bend Community School
Corporation; Lincoln's after school program begins at
2:20 p.m., presumably when the school day ends. See South
Bend Community School Corporation,
http://sbcsc.sslO.sharpschool.com/parents/Before%20&7o20After%20School%20Care/kaleidoscope_club_after_school_program/
(last visited Sept. 23, 2016).) If so, that would narrow the
possible window for Kubsch to have committed the crime down
to only a few minutes. We return to this point later, in our
discussion of the Chambers issue.

Around
3:15 p.m., Kubsch placed numerous calls to Beth's mother,
Diane Rasor; he eventually connected on the 11th try.
Cellular records indicate that by then he was driving north
toward the Michigan border. Between 4:42 and 4:47 p.m.
Indiana time, Kubsch made some calls picked up by the cell
tower in Schoolcraft, Michigan, which is about 11 miles north
of Three Rivers, Michigan, where Kubsch's son Jonathan
lived with his mother. (For the sake of consistency, we use
Indiana time throughout this account; in fact, though most of
Indiana and most of Michigan are in the Eastern time zone,
Indiana in 1998 had not yet adopted Daylight Savings Time;
thus Indiana was on Eastern Standard Time in September 1998,
while most of Michigan, including Three Rivers and
Schoolcraft, was an hour ahead on Eastern Daylight Time.)
Around 5:00 p.m., Kubsch picked up Jonathan; he also said
hello to his friend Wayne Temple around 5:30 or 5:45 p.m. at
the local Kmart store. He then headed back to Osceola with
Jonathan, stopping for ten minutes at the home of Constance
Hardy, the mother of his friend Brad. At 5:56 p.m., he made a
call from the cellular region close to the Prism Valley Drive
house.

Beth's
son Anthony had expected his mother to pick him up late in
the afternoon after a school dance. When she did not show up,
Anthony got a ride home with a friend. He arrived around 5:30
p.m., saw his mother's car and Rick's truck in the
driveway, and found the house locked. Anthony used his key to
enter, saw bloodstains and signs of a struggle, and
discovered Rick's body at the foot of the basement
stairs. He went down the stairs, saw a large knife stuck in
the body, and found Aaron's body nearby. Anthony
immediately ran for help, and police arrived by 5:45 p.m.
Both Rick and Aaron had multiple stab wounds, but at that
point the police did not notice any gunshot wounds, nor did
they find Beth. Some officers left to obtain a search warrant
for the house, and others remained at the crime scene.

Thus it
was when Kubsch showed up at the house at 6:45 p.m., he found
the house surrounded by police. The police took Kubsch to the
station, interviewed him, and then released him. The audio-
and video-recording of that interview shows Kubsch appearing
to be under control, not distraught or showing any emotion.
He made no reference to his missing wife. During the
interview, Kubsch told the police that he and Beth had
planned to meet for lunch to celebrate her birthday, but that
he had called to cancel because he had been late for work. He
also said that he had gotten permission to leave work early
so that he could buy her a present. (He did not do that until
later in the day.) He told the police that he had gone home
at lunchtime but could not get in, because he had forgotten
his key. He did not say that he had gone home a second time,
shortly after work, before heading to Michigan.

After
the interview, according to testimony from Kubsch's
friend Dave Nichols and Nichols's ex-wife (Gina
DiDonato), Kubsch called them and, according to the state,
said two things that only the killer, or someone who had
talked to the killer, would have known at that point. The
first was that Beth was "gone." Nichols interpreted
this as meaning dead, not missing, although the word is
obviously ambiguous. They also testified that Kubsch said
that Rick and Aaron had been shot, a fact the police learned
only the next day. (Kubsch presented testimony that DiDonato
had learned both of these details several months later from a
"gossiping waitress" and then relayed them to
Nichols. Kubsch III, 934 N.E.2d at 1153.) Around
9:00 p.m., the police discovered Beth's body concealed in
the basement. She, too, had been stabbed multiple times, and
her head and body had been wrapped in duct tape.

The
police immediately brought Kubsch back in for a second
interview that evening. He did not appear surprised to learn
of Beth's death. Asked several times by the officers to
tell them what happened, Kubsch chose instead to invoke his
right not to speak without an attorney. The police did not
arrest him for the murder immediately. They did, however,
find some additional shreds of inculpatory evidence: the
wrapper of a roll of duct tape of the type found on Beth in
Kubsch's car; a roll of duct tape at the top of the
basement stairs with a cloth fiber consistent with the carpet
of Kubsch's car stuck to it; a receipt for the purchase
of three rolls of duct tape; and a wadded-up receipt in
Kubsch's car from Beth's credit-union deposit that
morning. There was no evidence of how many brands of duct
tape there are, or if the type or types found were common.
Kubsch explained that he often kept duct tape in his truck
for use at his rental properties. Kubsch I, 784
N.E.2d at 915 n.4. Finally, the knives used for the murders
came from a set in the kitchen.

Despite
all this, the police waited three months before arresting
Kubsch. One additional clue seems to have prompted their
action: a person named Tashana Penn Norman told them that she
and her boyfriend overheard a person saying that he had
"hurt[ ] a little boy, " and she identified Kubsch
as the speaker.

Kubsch
was arrested on December 22, 1998, and charged with all three
murders. The state's theory was that Kubsch killed Beth
at the house between 1:53 and 2:51 p.m., intending to collect
the insurance money, but that just as he was killing Beth,
Rick and Aaron showed up, and so he murdered them, too. In
that connection, in an attempt to explain the lack of any
blood or other physical evidence on Kubsch's clothes or
in his truck, the state hypothesized that Kubsch showered and
changed his clothes at the house after committing the murders
and then left for Michigan. Kubsch III, 934 N.E.2d
at 1153.

Kubsch's
theory of defense was based on actual innocence. As the
Indiana Supreme Court noted in Kubsch I, he
maintained that he "was in Michigan picking up his son
at the time of the murders and that Brad Hardy, a lifelong
friend of Kubsch, committed the murders." 784 N.E.2d at
912. This was not a fanciful theory: Hardy was charged with
assisting a criminal and conspiracy to commit the three
murders at issue here. Id. at 912 n.l; Kubsch
II, 866 N.E.2d at 731. The state dropped the charges
against Hardy after he testified under a grant of immunity in
Kubsch's first trial. Kubsch II, 866 N.E.2d at
731. Hardy's lawyer was St. Joseph County Prosecutor
Michael Dvorak, who was then in private practice, and who
prosecuted Kubsch's second trial. The Indiana Supreme
Court rejected Kubsch's argument that Dvorak had a
conflict of interest. The district court found this to be a
reasonable outcome, and Kubsch has not pursued the point in
this court.

The
federal district court judge who presided over Kubsch's
habeas corpus proceeding described the case against Kubsch as
"entirely circumstantial. There was no eyewitness, no
DNA evidence, no fingerprint testimony, indeed no forensic
evidence at all that linked Kubsch to the murders."
Instead, there was what he called a "slow-moving
accumulation of a glacier of circumstantial evidence, "
principally "lies, inexplicable omissions, and
inconsistencies" in Kubsch's own account of the
event.

We have
no doubt that a reasonable jury could have viewed these facts
as sufficient to convict Kubsch for the murders. The fact
that the evidence was purely circumstantial is of no moment:
juries properly rely on circumstantial evidence every day.
But the jury never heard a critical additional piece of
evidence, which, if credited, would have permitted them to
find that the police had the wrong man. Because of its
importance, we now describe the omitted evidence in detail.

B

The
critical evidence that was kept from the jury was videotaped
testimony by a girl named Amanda ("Mandy") Buck,
"who, according to the defense, would have testified
that she saw Aaron after 3:30 p.m. on the day of the
murders." Id. at 730. Mandy, who was nine years
old at the time, was interviewed immediately after the
murders, on Tuesday, September 22, 1998. The interviewer was
Detective Mark Reihl; the interview took place in what
appears to be a room in the police station. Mandy's
mother, Monica, was present throughout and volunteered
corroborating details from time to time. We attach the full
transcript of the interview as Appendix A to this opinion.

After
establishing some basic information, Detective Reihl
confirmed that Mandy was a fourth-grader at Lincoln School,
that she lived right across the street from Aaron and his dad
Rick, and that she and Aaron were "best friends."
She commented that Aaron didn't like Kubsch, because he
would get rough and punch too hard "and stuff like
that." She saw Aaron frequently: "I always went
over to his house. He always came over to my house and like
we like used to study for the same spelling words. ... And we
would help each other on homework and stuff." When Reihl
asked her when they got out of school, she replied "two
twenty." She lived close to the school, she said, just a
five-minute walk away.

Detective
Reihl then asked Mandy directly "Now, do you remember
last Friday, " meaning September 18, the day of
the murders. Mandy replied "yeah." Reihl then asked
her "did they [meaning the Alphabet Academy, her daycare
facility] pick you up Friday?" Again, Mandy
responded in the affirmative, by nodding her head. Reihl then
asked her to recount what happened next. From there, Mandy
said, her mother (as she usually did) picked Mandy up to take
her home, "[b]etween three thirty and quarter to
four." Monica interjected that on the day in question
she "waited for [Monica's] mom and dad to get home,
and I went and cashed my check and came home." Reihl
then asked whether Monica noticed if Rick was across the
street. Monica replied "I didn't pay no attention.
All I saw was Aaron." Reihl repeated "You saw
Aaron?, " and Monica said "[m]mm hmm." She did
not remember if Rick's truck was there.

Turning
back to Mandy, Reihl asked again what time she got home that
day. Monica answered instead, repeating "three thirty or
quarter to four." Mandy confirmed that she saw Aaron
then, and that she also saw "his dad, " who
"was coming from their living room into the kitchen to
get something to drink." She explained that she was able
to see this from her own house: "every day when I walk
home I always see Rick walk into the kitchen or walk into the
restroom or walk into his room." Asked what kind of car
Rick drove, Mandy replied "[a] Chevy? He used to drive a
Chevy until it broke down." She specified that it was a
black, medium-sized, "kinda short" truck. When
Reihl asked "what was [Rick] driving Friday,
" Mandy replied that because his truck had broken
down, he was driving a white truck that he had borrowed from
his brother, and that the white truck was at the house when
she got home from school that day.

Reihl
next asked whether she saw Rick and Aaron leave that
afternoon. She answered, "Urn, yeah, like I was on my
porch and, and they let me blow bubbles and I was blowin'
my bubbles, and I seen Rick pull out and leave." She was
not sure what time they left, because she left her watch in
her bag after gym class, but she estimated it was a
"medium" time after she got home. She then
commented, without prompting, that "it takes a pretty
long time to get to [Aaron's] mom's house."

She
then went into some detail about Aaron's plans for the
weekend. "He said that he was going to his mom's
house Friday, 'cause he was gonna stay the night there to
go to the field trip Saturday. ... You know he was, he-he
wanted to go on the field trip bad. ... But by the time
Saturday when we, when we were on the bus and stuff, he was
gonna be in our group, and, um, he never showed up. He
wasn't there. And we didn't know why." She went
camping after the field trip and told her grandmother after
she returned that she had not seen Aaron on the trip. On
Sunday, she mentioned, her grandpa "didn't turn the
[the TV] on ... because he, he didn't know it was they
got murdered Friday night." Mandy learned about the
murders after a news crew came to her home while she was at
her karate lesson on Monday, the day before the interview.

At that
point, Reihl once again confirmed that he was asking Mandy
about Friday: "So, Friday, after you got home, they left
just a little bit after when you got home, right?" Mandy
again said "yeah, " and confirmed that she saw the
two of them leave the house. No one was with them, she said,
and she explained that Rick "didn't know if
Aaron's mom was home yet so Rick was thinking if his
mom's not there, then Wayne's probably not there. So,
he said, I'll just drive you, ' and they just took
off, pulled out and took off."

Reihl
then turned back to Monica and confirmed that she cashed her
paycheck on Friday, shortly after she came home from work
(around 3:50 p.m.). She said again that she had seen Aaron,
but not Rick, when she returned about 15 minutes later, and
(in response to Reihl's question) she said that she did
not look to see if Rick's truck was there. They discussed
what kind of truck Rick typically drove. By then, the
interview was winding down. Reihl asked Mandy yet again
whether she saw both Aaron and his father in the yard around
3:30 or 3:45 p.m., and she said yes. He asked whether
"[t]hese times that you've given me today, uh, these
are pretty accurate, " and Monica said, "Yeah,
'cause I get off work at quarter after three." This
was her daily routine. With that, the interview ended.

A few
days after Mandy's interview, Reihl called Monica's
place of employment and then her home, apparently in an
attempt to confirm yet again that both Mandy and Monica had
correctly recounted what happened and when it happened. Reihl
spoke to Mandy's grandfather ("Lonnie") and
asked him to find out if Mandy and Monica were certain about
their story. Lonnie called Reihl back and told him that the
events that Mandy and Monica had described had taken place on
Thursday, September 17, not on Friday, which had been the
exclusive focus of Reihl's interview.

The
prosecutors recounted at Kubsch's trial that Monica told
the police that "her father was at her house on that
Thursday, and he later reminded her that it was Thursday
instead of Friday." She said that she-Monica-had
confused the dates because she was so busy; she offered no
reason why Mandy would have confused them. Nor was there any
effort to explain away Mandy's detailed comments about
the timing of the Saturday field trip and her subsequent
camping trip, karate lesson, and so on. At that early time,
not a week after the field trip, it would have been easy to
confirm with the school whether the trip took place on
Saturday, September 19, or Friday, September 18. (And even
the trial evidence shows Rick picking up Aaron at school
between 2:20 and 2:35 p.m. on Friday, strongly suggesting
that there was no field trip that day, and also undermining
the state's theory that the murders were committed
between 1:53 and 2:51 p.m., particularly if the state's
theory that Kubsch had time to shower and change clothes
before leaving by 2:51 p.m. is credited.) In addition, it
would have been relatively easy to confirm when Monica was
paid and made her deposit, just as evidence had shown when
Beth visited her own bank.

Mandy
was called to testify at the second trial, but she had almost
nothing to say. She claimed to have no memory of talking to
the police or being interviewed by them in 1998. When
Kubsch's lawyer attempted to use the transcript of the
interview to refresh her recollection and later to impeach
her, the prosecution objected and the court sustained the
objections. The court also refused to permit the use of the
videotaped interview as a recorded recollection, despite
Mandy's asserted inability to recall anything about the
interview.

II

The
Indiana Supreme Court set aside Kubsch's conviction after
his first trial; it affirmed the conviction and sentence
reached at the second trial, which took place in March 2005,
and so that is what is now before us. Kubsch had one and only
one defense to the three murder charges: actual innocence.
For the most part, his lawyers pursued this in the only way
they could, by attempting to impeach the state's
witnesses. They also tried to call Mandy as a witness, either
to testify about her independent recollection of the events
of September 18, 1998, or to provide a basis for the
introduction of the videotape of her interview with Detective
Reihl as a recorded recollection admissible under Indiana
Rule of Evidence 803(5). But they hit a brick wall. Mandy, by
then 16 years old, testified that she had no recollection
either of seeing Rick and Aaron on the afternoon of the
murders, or even of being interviewed by the police the
following Tuesday. The trial court permitted her to review
the video recording of her interview, but she maintained that
this did not refresh her recollection. Kubsch's lawyers
never tried to use Monica to provide foundation for the
recording, nor did they call her as a witness.

Indiana
Rule of Evidence 803, like its federal counterpart, sets out
exceptions to the ordinary rule under which hearsay evidence
is not admissible. The exception that Kubsch's lawyers
wanted to use was for recorded recollections. Rule 803(5)
provided at the time for the admissibility (for the truth)
of:

[a] memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the witness
when the matter was fresh in the witness's memory and to
reflect that knowledge correctly ....

In
Kubsch II, the Indiana Supreme Court held that the
final element-that the recording reflects the witness's
knowledge correctly-was the only one at issue, and that
Kubsch had failed to meet it. It interpreted the rule to
require the witness to be able to "vouch for the
accuracy of the prior statement, " citing Gee v.
State,389 N.E.2d 303, 309 (Ind. 1979). 866 N.E.2d at
734. Mandy could not do so, given her asserted inability to
recall the interview at all. Id. at 735.

Kubsch's
lawyers also wanted to use the video to impeach one statement
that Mandy made at trial, namely, that "I
probably didn't see [Aaron], because I go straight [from]
home to the day care, and then I would go home
afterwards." Id. That testimony directly
contradicted her statements to the police in the videotaped
interview, and the Indiana Supreme Court held that Kubsch
should have been allowed to impeach her on that matter. It
found the error to be harmless, however, because it thought
that other evidence would have supported her version at trial
(i.e. Lonnie's testimony that she had the days
mixed up).

We have
no reason to disagree with the state court on the harmless
nature of this failure to admit impeachment evidence. Nor do
we take issue with the holding that, as a matter of Indiana
law, Mandy's inability to vouch for the accuracy of her
prior statement meant that it could not be admitted for the
truth under Indiana Rule of Evidence 803(5). But the last
word does not belong to state law; it belongs to the Due
Process Clause of the Fourteenth Amendment to the U.S.
Constitution. The central question before us is thus whether,
in these circumstances, the state court rendered a decision
contrary to, or unreasonably applying, the Supreme
Court's decision in Chambers.

III.

The
clash between ordinary evidence rules and constitutional due
process that the Supreme Court addressed in Chambers
is functionally identical to the one now before us. Like our
case, the issue arose in a murder prosecution. Like our case,
it involved the state's hearsay rule as well as a second
rule-in Chambers the state's voucher rule for
witnesses, in our case the state's rule requiring
vouching before recorded recollections may be introduced. And
like our case, the evidence that was excluded pursuant to the
state evidentiary rule was vital to the defense, and the
circumstances provided ample assurance that the evidence was
reliable. A closer look at Chambers demonstrates
these similarities.

On
Saturday evening, June 14, 1969, in Woodville, Mississippi,
two policemen-James Forman and Aaron Liberty- entered a local
bar to execute a warrant for the arrest of a young man named
C. C. Jackson. The arrest did not go well; a hostile crowd of
50 or 60 people tried to impede their work. Liberty removed
his riot gun while Forman radioed for assistance. Three
deputy sheriffs arrived, but Forman and Liberty were once
again stymied in their efforts to arrest Jackson. During the
commotion, five or six shots were fired. Forman saw that
Liberty had been shot several times in the back. He died of
his wounds, but before that, he managed to fire both barrels
of his riot gun into an alley. The second shot hit Leon
Chambers. Chambers fell and for a while was presumed dead.

The
general chaos made it hard to see who was shooting whom.
Forman could not tell, from his vantage point. One of the
deputies testified that he saw Chambers shoot Liberty;
another said that he saw Chambers "break his arm
down" just before the shots were fired. Shortly after
the shootings, three of Chambers's friends realized that
he was still alive and got him to the hospital. Chambers was
later charged with Liberty's murder. He pleaded not
guilty and steadfastly maintained his innocence.

One of
the people who helped Chambers get to the hospital was Gable
McDonald. He left Woodville shortly after the bar incident
and moved to Louisiana. He later returned to Woodville,
however, where he confessed under oath to Chambers's
attorneys that he was the one who shot Liberty. He had also
told a friend, James Williams, that he shot Liberty. He was
arrested based on these statements, but at a preliminary
hearing a month later, he repudiated his confession.

At the
trial, Chambers pursued two lines of defense. First, he tried
to show that he was not the person who shot Liberty. Second,
and pertinent here, he tried to show that McDonald was the
guilty party. He was thwarted, however, in his efforts to put
before the jury all the evidence supporting that defense. One
witness testified that he saw McDonald shoot Liberty, and
another witness testified that he saw McDonald with a gun
immediately after the shooting. But Chambers wanted to
introduce much more powerful evidence: McDonald's own
confessions. McDonald had admitted responsibility on four
separate occasions: in his sworn statement to Chambers's
counsel, and three other times in private conversations with
friends. As the Supreme Court put it, Chambers failed because
of "the strict application of certain Mississippi rules
of evidence." 410 U.S. at 289. The first was
Mississippi's party-witness or voucher rule, under which
a party is not permitted to impeach his own witness; the
second was Mississippi's hearsay rule. Id. at
294. The Supreme Court found that these rules, in
combination, deprived Chambers of his federal due-process
right to present a defense.

The
Court's discussion of the hearsay rule guides us here.
The rule is based on "the notion that untrustworthy
evidence should not be presented to the triers of fact."
Id. at 298. Out-of-court statements typically lack
"conventional indicia of reliability/' such as the
witness's being under oath, being available for
cross-examination, and being present so that the jury is able
to assess demeanor and credibility. Id. (Some cases
have questioned whether demeanor evidence is such a good sign
of truthfulness. See United States v. Pickering, 794
F.3d 802, 804-05 (7th Cir. 2015); Consolidation Sews.,
Inc. v. KeyBank Nat. Ass'n,185 F.3d 817, 821 (7th
Cir. 1999). We leave that debate for another day.) Exceptions
to the hearsay rule exist where reliability concerns are not
present.

Significantly,
the Chambers Court did not rest its holding on any
criticism of Mississippi's rules of evidence, either the
voucher rule or the hearsay rule. Instead, it looked at the
evidence Chambers was proffering and found that "[t]he
hearsay statements involved in this case were originally made
and subsequently offered at trial under circumstances that
provided considerable assurance of their reliability."
Chambers, 410 U.S. at 300. It highlighted the
following facts: McDonald's confessions had been made
spontaneously to close acquaintances shortly after the
murder; each statement was corroborated by other evidence;
the sheer number of independent confessions had some weight;
they were self-incriminatory; and McDonald was present in the
courtroom and under oath. Id. at 300-01.

The
Court concluded with the following passage:

Few rights are more fundamental than that of an accused to
present witnesses in his own defense. ... In the exercise of
this right, the accused, as is required of the State, must
comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the
ascertainment of guilt and innocence. Although perhaps no
rule of evidence has been more respected or more frequently
applied in jury trials than that applicable to the exclusion
of hearsay, exceptions tailored to allow the introduction of
evidence which in fact is likely to be trustworthy have long
existed. The testimony rejected by the trial court here bore
persuasive assurances of trustworthiness and thus was well
within the basic rationale of the exception for declarations
against interest. That testimony also was critical to
Chambers' defense. In these circumstances, where
constitutional rights directly affecting the ascertainment of
guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.

We conclude that the exclusion of this critical evidence,
coupled with the State's refusal to permit Chambers to
cross-examine McDonald, denied him a trial in accord with
traditional and fundamental standards of due process.

Id. at 302.

Chambers
was not a one-and-done opinion from the Supreme Court. To the
contrary, the rule requiring state evidentiary rules to yield
to the defendant's fundamental due-process right to
present a defense has arisen in many later cases. Sometimes
the Court has granted relief on that basis, and sometimes it
has found no due-process violation. Westlaw shows that
Chambers has been cited in 33 Supreme Court
decisions since it was handed down. We highlight only a few
of them to show how the rule as established in
Chambers has been applied over the years.

Six
years after Chambers was decided, the Court decided
Green v. Georgia,442 U.S. 95(1979), by a
per curiam opinion. Like Chambers, Green was a
murder case; like our case, it was one in which the
petitioner was under a sentence of death. At the sentencing
stage, the state court refused on hearsay grounds to admit
the testimony of Pasby, a witness who had testified at
Green's co-defendant's trial that the co-defendant
had killed the victim. The state then argued to the jury that
in the absence of direct evidence of the crime, it could
infer that Green participated directly in the murder from the
fact that more than one bullet entered the victim's body.
This application of the state's hearsay rule, the Court
ruled, violated Green's due process rights:

The excluded testimony was highly relevant to a critical
issue in the punishment phase of the trial.... [Substantial
reasons existed to assume its reliability. ... The statement
was against interest .... Perhaps most important, the State
considered the testimony sufficiently reliable to use it
against [the co-defendant], and to base a sentence of death
upon it.

Id. at 97. With that, the Court vacated the sentence
and remanded for further proceedings.

Crane
v. Kentucky,476 U.S. 683 (1986), was another murder
case in which the Court found that the exclusion of evidence
pursuant to a state evidentiary rule violated the
defendant's due process rights. This time it was not the
hearsay rule; it was a Kentucky rule under which, once a
confession has been found to be voluntary, the evidence
supporting that finding may not be introduced for any other
purpose-in particular, credibility. After acknowledging its
traditional reluctance to impose constitutional constraints
on ordinary evidence rules, and its recognition of the power
of the states to exclude evidence "through the
application of evidentiary rules that themselves serve the
interests of fairness and reliability/' the Court
reaffirmed the due-process limitations on those principles
and held that "the blanket exclusion of the proffered
testimony about the circumstances of petitioner's
confession deprived him of a fair trial." Id.
at 689-90. It went on as follows:

Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, Chambers v. Mississippi,
supra, or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment, ... the Constitution
guarantees criminal defendants "a meaningful opportunity
to present a complete defense." ... We break no new
ground in observing that an essential component of procedural
fairness is an opportunity to be heard. ... That opportunity
would be an empty one if the State were permitted to exclude
competent, reliable evidence bearing on the credibility of a
confession when such evidence is central to the
defendant's claim of innocence.

Id. at 690 (citations omitted). The Court came to
the same conclusion the next year, in Rock v.
Arkansas,483 U.S. 44 (1987), in which it held, in a
manslaughter case, that Arkansas's per se rule excluding
all hypnotically refreshed testimony infringed impermissibly
on the defendant's right to testify on her own behalf.
Id. at 55-56, 61.

The
last case we mention in which the Chambers rule was
applied to overturn the exclusion of critical evidence is
Holmes v. South Carolina,547 U.S. 319 (2006), yet
another murder prosecution in which a sentence of death was
imposed.

This
time the Court considered a state evidence rule, whose source
was the decision in State v. Gregory,16 S.E.2d 532
(S.C. 1941), under which a defendant may not introduce proof
of third-party guilt if the prosecution had introduced
"strong evidence" of the defendant's guilt,
including forensic evidence. Holmes, 547 U.S. at
323-24. The state's theory was that in these
circumstances the evidence suggesting a third party's
guilt was not enough to raise a reasonable inference of the
defendant's innocence. Id. at 324. The Court
recognized, as it had before, that "[s]tate and federal
rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal
trials." Id. (citation omitted). Nevertheless,
it wrote, "[t]his latitude ... has limits."
Id. It continued:

Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. ... This right is
abridged by evidence rules that infringe upon a weighty
interest of the accused and are arbitrary or disproportionate
to the purposes they are designed to serve.

Id. (citations and quotation marks omitted). After
reviewing some of the cases, including Chambers,
Rock, and Crane, in which due process was
violated by the exclusion of evidence in the name of a state
rule, the Court contrasted cases where the state rule did not
have the forbidden effect: "[W] ell-established rules of
evidence permit trial judges to exclude evidence if its
probative value is outweighed by certain other factors such
as unfair prejudice, confusion of the issues, or potential to
mislead the jury." Id. at 326. The South
Carolina rule before it, the Court concluded, was arbitrary
and could not be used to exclude the petitioner's
evidence. Id. at 331.

The
cases in which Chambers has not required a state
evidence rule to be overridden fit the general pattern
described in Holmes. Thus, in Montana v.
Egelhoff,518 U.S. 37 (1996), the Court considered a
Montana rule limiting the use of voluntary intoxication
evidence. The respondent, charged with homicide, wanted to
introduce evidence of his extreme intoxication. He did
introduce it, but the jury was instructed that it could not
consider his condition in determining whether he had the
mental state required by the statute. Justice Scalia, writing
for a plurality, rejected the proposition that no
relevant evidence may ever be kept out of a trial.
He found the state's rule to be consistent with the
common law, and then added some remarks about
Chambers, which he labeled "highly
case-specific error correction." Id. at 52.
(plurality opinion). Justice Ginsburg concurred in the
judgment on the ground that the state had redefined the
mental-state element of the offense. Id. at 57.
(Ginsburg, J., concurring) Had it adopted a rule to keep out
relevant, exculpatory evidence, she would have found that it
offended due process. Id. Justices O'Connor,
Stevens, Souter, and Breyer would have found a due-process
violation. Id. at 61 (O'Connor, J. dissenting).

In
Clark v. Arizona,548 U.S. 735 (2006), the question
concerned an Arizona rule that was more substantive than
procedural. Arizona had a rule restricting consideration of
defense evidence of mental illness and incapacity to its
bearing on a claim of insanity; it thus eliminated the
significance of this evidence for mens rea. As it
had done in Egelhoff, the Court (this time through a
majority) held that the state rule did not violate due
process. Chambers was peripheral to its reasoning.
It quoted from Holmes, noting that while the
Constitution prohibits the exclusion of evidence under rules
that serve no legitimate purpose or are disproportionate to
legitimate ends, it does permit the exclusion of evidence if
its probative value is outweighed by factors such as
prejudice, confusion, or potential to mislead. Id.
at 770. In so doing, the Court noted that evidence of mental
disease and capacity "is not being excluded
entirely"; rather, the rule restricted the use of
evidence for a limited reason which satisfied "the
standard of fundamental fairness that due process
required." Id. at 770-71.

Lastly,
the Court found Chambers to be inapplicable in
Nevada v. Jackson,133 S.Ct. 1990 (2013) (per
curiam), in which the question was whether a state statute
that generally precludes the admission of extrinsic evidence
of specific instances of a witness's conduct for purposes
of attacking credibility could be applied. The Court found no
constitutional problem, either under the Due Process Clause
or the Confrontation Clause, with the application of the
state's rule. Id. at 1992-94. Notably, the
defendant's crime in Jackson was sexual assault,
not murder.

We
glean a number of lessons from the Chambers line of
cases. First, as Chief Justice Rehnquist pointed out in
Gilmore v. Taylor,508 U.S. 333 (1993), the cases in
which the Chambers principle has prevailed
"dealt with the exclusion of evidence ... or
the testimony of defense witnesses, ... [not] a
defendant's ability to present an affirmative
defense." Id. at 343 (emphasis added). Second,
we think it no accident that the cases in which the Court has
applied Chambers - Green, Crane, Rock, and
Holmes-have involved murder and often the death
penalty. Third, the proffered evidence must be essential to
the defendant's ability to present a defense; it cannot
be cumulative, impeaching, unfairly prejudicial, or
potentially misleading. Fourth, as the Court put it in
Chambers itself, the evidence must be reliable and
trustworthy. One, though not the only, way that reliability
and trustworthiness can be demonstrated is to show that the
evidence closely resembles evidence that would be admissible
under the state's rules. Finally, the rule cannot operate
in an arbitrary manner in the case at hand. Arbitrariness
might be shown by a lack of parity between the prosecution
and defense; the state cannot regard evidence as reliable
enough for the prosecution, but not for the defense. But that
does not exhaust the ways of satisfying this criterion. A
refusal to consider corroborating circumstances, an
unexplained departure from an established line of decisions,
or an assumption about the relative weight of evidence (as in
Crane) might also suffice.

IV

A

Although
the Indiana Supreme Court did not have much to say about
Kubsch's Chambers argument in its opinion on
direct review from his conviction at the second trial, it did
reach the merits of his claim. After finding that the
videotaped evidence was inadmissible under Indiana Rule of
Evidence 803(5) because Mandy had not vouched for its
accuracy, and finding that the error in excluding it for
impeachment purposes was harmless, the Court dropped this
footnote:

The availability of this testimony [i.e. that of
Reihl and Monica to the effect that they had mixed up
Thursday and Friday] is also the reason why Kubsch's
claim that he was denied his federal constitutional right to
present a defense fails. See Chambers v.
Mississippi,410 U.S. 284, 302 (1973) (protecting
defendant's due process right by recognizing an exception
to application of evidence rules where evidence found to be
trustworthy).

Kubsch II, 866 N.E.2d at 735 n.7. That is enough to
trigger the familiar AEDPA deference to the state court's
conclusion. Kubsch's application for a writ of habeas
corpus must be denied unless, as applicable here, the
adjudication in state court "(1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States ... ." 28 U.S.C.
§ 2254(d)(1).

The
Supreme Court has elaborated on what this means. There are
two ways in which the "contrary to" part might be
violated: a state-court decision might arrive at a conclusion
opposite to that which the Supreme Court reached on a
question of law; or the state court might "confront[] a
set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrive[] at
a result different from [its] precedent." Williams
v. Taylor,529 U.S. 362, 406 (2000). Under the
"unreasonable application" clause, the writ may not
issue simply because the federal court concludes that the
state court erred. Woodford v. Visciotti, 537 U.S.
19, 24-25 (2003). Rather, the applicant must demonstrate that
the state court applied the Supreme Court's precedent in
an objectively unreasonable manner. Id. at 25.
"[A] state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Harrington
v. Richter,562 U.S. 86, 103 (2011). For good measure,
the Court added "[i]f this standard is difficult to
meet, that is because it was meant to be." Id.
at 102.

On the
other hand, the Court has never insisted on virtual identity
between its precedent and the new case. In Williams v.
Taylor, for instance, it said that "a state-court
decision also involves an unreasonable application of this
Court's precedent if the state court either unreasonably
extends a legal principle from our precedent to a
new context where it should not apply or
unreasonably refuses to extend that principle to a
new context where it should apply." 529 U.S. at
407 (emphasis added). Panetti v. Quarterman, 551
U.S. 930 (2007), made much the same point. The Court there
held:

AEDPA does not require state and federal courts to wait for
some nearly identical factual pattern before a legal rule
must be applied. ... Nor does AEDPA prohibit a federal court
from finding an application of a principle unreasonable when
it involves a set of facts different from those of the case
in which the principle was announced. ... The statute
recognizes, to the contrary, that even a general standard may
be applied in an unreasonable manner.

Id. at 953 (citations and quotation marks omitted).

B

Our
only remaining task is to apply the relevant law and
standards of review to Kubsch's case. First, this case
deals with the total exclusion of relevant evidence, not with
a limitation on the way the evidence can be used. Second,
this was a murder case-indeed, one in which the death penalty
was being sought-and so the defendant's interest in the
evidence was at its zenith. Third, the excluded evidence was
easily the strongest evidence on Kubsch's only theory of
defense-actual innocence. It was not cumulative, unfairly
prejudicial, potentially misleading, or merely impeaching.
Finally, as Chambers requires and as we now discuss
in more detail, it was unusually reliable.

Professors
Wright and Graham identify four dangers that have
traditionally been thought to arise from hearsay evidence:
(1) defects in the declarant's perception; (2) defects in
the declarant's memory; (3) defective narration, on the
part of either the declarant or the witness; and (4) lack of
sincerity or veracity on the declarant's part. 30 Charles
Alan Wright & Kenneth W. Graham, Jr., Federal Practice
and Procedure § 6324 (1997). None of these is present to
any significant degree in Mandy's video. As the
transcript at Appendix A illustrates, Detective Reihl
questioned her carefully and thoroughly, checking several
times that she and her mother, Monica, had the right times
and making it clear that his questions pertained to Friday.
See Appendix A, infra at 43 ("Okay. And this is
about what time again?"); at 51 ("Well,
just so I got this right then, Mandy, you got home at about
three thirty, quarter of four and you saw Aaron and his dad
and that white truck at his house?"); at 52 (to Monica)
("These times that you've given me today, uh, these
are pretty accurate?"). There is no reason to think that
Mandy and her mother would not have been able to perceive
events occurring in the house just across the street from
theirs, where Mandy's friend "best friend"
Aaron lived.

The
interview took place just four days after the murders, on
Tuesday, September 22, 1998, at 3:00 p.m. The chance of
identical defects in Mandy's and Monica's memories is
close to zero over that short time, and there is no reason to
think that they had coordinated their stories. It is also
worth pointing out that their accounts throughout the
interview corroborate one another on many critical details:
the fact that Monica picked Mandy up from the Alphabet
Academy at the usual time (between 3:30 and 3:45 p.m.); the
fact that both of them saw Aaron after they got home (and
Mandy saw Rick, too); and the fact that all this happened
after Monica left work at 3:15 p.m.

No
defect in narration-that is, the ability of the witness to
communicate her recollections of some past perception to the
trier of fact-exists, because the video ensured that the
trier of fact would have heard exactly what Mandy and Monica
said. If there were defects in their original account, the
state would have had every opportunity to introduce evidence
to punch holes in their account. (Kubsch, of course, had no
reason to do this; he takes the position that their account
is accurate.) The state could, for instance, have subpoenaed
Monica's bank to see when she made the deposit to which
she referred. If she did so on Friday, September 18, the
accuracy of the dating would have been corroborated. If, as
the state has speculated throughout these proceedings, she
did so on Thursday, September 17, that would have been
powerful impeachment evidence for the state. The state could
also have secured evidence from Lincoln School that would
have pinned down the date of the field trip Mandy highlighted
during the interview. Mandy said that Aaron had told her that
"he was going to his mom's house Friday, 'cause
he was gonna stay the night there to go to the field trip
Saturday." But, she continued, "by the time
Saturday when we ... were on the bus and stuff, he was gonna
be in our group, and ... he never showed up." There is
no hint in this that Aaron was also going to go to his
mother's on Thursday.

Finally,
no one has ever said that Mandy and Monica lacked sincerity
or veracity. The most the state, using Lonnie's evidence
from the next week, ever said was that they were mistaken.
Had the evidence come in, the state would have had a number
of ways to demonstrate mistake, using the objective evidence
we have just described.

The
question in the end is not whether the Mandy videotape was
100% reliable. If 100% reliability were the standard,
eyewitness testimony would never be used, Evidence Rule 803
would have to be repealed in its entirety, and prosecutors
could never prove their case beyond a reasonable doubt. Nor
is the question whether it was enough to require acquittal as
a matter of law. As we said earlier, even with this evidence
in the record, a rational jury could either acquit, if it
found Mandy's and Monica's accounts persuasive, or it
could convict, based on the circumstantial evidence
chronicled in the state court's opinion. All we are
saying is that the jury should have been given the chance to
evaluate this case based on all the evidence, rather
than on the basis of a truncated record that omitted the
strongest evidence the defense had.

In this
regard, the fact that the video missed qualifying for
admission under Indiana Evidence Rule 803(5) by just a hair
is also important. All that was missing was Mandy's
recollection of the interview. No one argued that she was not
the girl depicted on the video; no one argued that there had
been tampering of the video. It is troublesome that the
Indiana Supreme Court appeared to demand more in the way of
vouching here than it has required in other cases. In
Small v. State,736 N.E.2d 742 (Ind. 2000), it
upheld the trial court's decision to allow the
prosecution to read relevant portions of a witness's
deposition even though, at trial, the witness could not
remember the answers she had given during the deposition, and
after reviewing the transcript still could not
recall her statements. Id. at 745. See also
Impson v. State,721 N.E.2d 1275, 1282-83
(Ind.Ct.App. 2000) (affidavit admitted where signed shortly
after attack, consistent with what affiant told another
person, even though affiant denied any memory of the attack
at trial); Flynn v. State,702 N.E.2d 741, 744
(Ind.Ct.App. 1998) (recorded, out-of-court statement admitted
under Rule 803(5) because state showed at trial that
declarant lacked recollection, that she had personal
knowledge of the events in the statement, and that she had
made a full and complete statement of the events according to
an officer who took her statement). Even if the record of
Kubsch's trial does not show a lack of "parity"
in the application of Rule 803(5) within Kubsch's own
trial, these cases suggest a troubling lack of consistency in
the application of the rule.

One
might criticize the video for lack of corroboration, but that
overlooks the fact that Monica's statements corroborate
Mandy's statements. If the state had wanted to undermine
their accounts, evidence was readily available to it (and we
can assume that it would promptly have turned to that
evidence, had the court allowed the video to be introduced).
Detective Reihl was courteous to both Mandy and Monica, but
he circled back a number of times to ensure that their
accounts were consistent. Neither Mandy nor Monica was under
oath, but they gave their account in an official setting, at
the police department, knowing that it was being recorded.
While this might not be quite the assurance of truthfulness
that a formal oath might provide, it was a close substitute.
Both Mandy and Monica knew that they were being questioned in
connection with a triple murder and that their statements
were testimonial. We accept that Mandy was not available to
be cross-examined, because she claimed to have no
recollection either of the event or of the interview with
Detective Reihl. But hearsay evidence typically involves a
situation in which the out-of-court declarant cannot be
cross-examined. Nevertheless, the Supreme Court in
Chambers and the cases following it has said that
when hearsay is otherwise reliable, is critical to the theory
of the defense, and the case involves a murder prosecution,
due process requires its admission.

V

Chambers
was decided 46 years ago; only ten years ago, in
Holmes, the Supreme Court reconfirmed its rule:
"the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense. ...
This right is abridged by evidence rules that infringe upon a
weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to
serve." Holmes, 547 U.S. at 324 (citations and
quotation marks omitted). In other words, due process demands
that evidence rules must be overridden in a narrow set of
circumstances. The facts of Kubsch's case parallel so
closely the facts of Chambers, Green, Crane, and
Holmes, that a failure to apply those cases here
would amount to an unreasonable application of law clearly
established by the Supreme Court.

Nothing
that the Supreme Court has said, and nothing we say, means
that the hearsay rule will never bar the admission
of video evidence. In the years since Chambers,
neither the hearsay rule nor the other evidentiary rules the
Court has considered have wound up in the wastebasket. Only
if all of the factors the Court has specified, and we have
described, come together must the evidence rule yield. Due
process requires no less.

We thus
conclude that the Indiana Supreme Court's conclusion that
Chambers did not require the admission of this
critical evidence was either contrary to, or an unreasonable
application of, the Chambers line of Supreme Court
precedent. We therefore Reverse the judgment of the district
court and Remand for issuance of the writ of habeas corpus,
unless the state within 120 days takes steps to give Kubsch a
new trial.

APPENDIX
A

Transcript
of Police Interview with Monica and Mandy Buck September 22,
1998

Det.
Mark Reihl: [Inaudible] stepped out for a minute. I'll go
ahead and start asking you a couple questions. Okay, and the
time is now three o'clock PM. And, today is September the
twenty-second, nineteen ninety-nine-nineteen ninety-eight.
And Mandy, is it M-a-n-d-y?

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